PETROV & SERA

500NorthProsper,Suite260 Lakesville, Columbia

MEMORANDUM

To: Applicant

From: B. K. Moro

Re: Smithv.RegentsoftheUniversityofColumbia

Date: February28,2024

Dr. Ned Smith has retained us to represent him in claims arising from his removal as Chairperson of the Department of Medicine at the University of Columbia. The Regents of the University terminated him as head of the Department following his very vocal and public opposition to the relocation of the Medical School from its current location here in Lakesville to Palisades, some 20 miles away.The termination is effective almost a month from today.He will retain his professorship after his termination as Chair.

Dr. Smith wishes to pursue injunctive relief to stop his termination, if possible.Please write an objective memorandum in which you analyze two of the issues concerning the likelihood of obtaining a preliminary injunction based on retaliatory employer action in violation of Dr. Smith's First Amendment right to free speech under the State of Columbia Constitution. The first issue is: does the speech involve a matter of public concern. The second issue is: in weighing the employee's interest in the speech against the government employer's interest in regulating the speech of its employees so that it can carry on an efficient and effective workplace, would or did the speech create problems in maintaining discipline or harmony among coworkers.

LAKESVILLE GAZETTE

February12,2024

PROFESSOR'S LETTER SPARKS OUTCRY:REGENTSSCHEDULEHEARING

A "letter to the editor" to the Lakesville Gazetteon December 28, 2023 by a University ofColumbiadepartmentchaircomplainingaboutplanstorelocatetheSchoolof Medicinehaserupted intoa publicprotest andthescheduling ofa special hearing by the Board of Regents.The letter of Dr. Ned Smith, longtime chair of the Department ofMedicineofUC'sMedical School, stated: "I write to you as a private citizen who is concerned about the recent direction taken by the Regents of the University of Columbia. I have been a good soldier. I have limited the expression of my concerns to the University community up to this point. I was hopeful that would be able to persuade the powers that be that the proposal to relocate the Medical School to Palisades, 20miles fromits presentLakesvillelocation, isill-conceived,fiscally reckless, and detrimental to the needs of our indigent citizens. Unfortunately, this has not been the case. I urge members of the general public to take a look at my report submitted to the medical school dean and theRegentsand posted on his UCwebsite at http://www.ucolum.hsc.medschool.edu/smith.The Regents will hold a public hearing on February 26, 2024. Come to the hearing and make your opposition known."

Community activists have used Dr. Smith's letter to rally people, particularly those in the Hilltop area, to attend the Regents' hearing on February 26, 2024 and tospeakagainstmovingtheschool.Madge Riley,presidentof theHilltopCitizens' Association, said, "Manyof Lakesville'smost vulnerable residentsare totallydependent on the Med School for virtually all of their health care needs."Ms. Riley pointed specifically to emergency room services available through the School of Medicine. Riley also added, "The School's specialized clinics and research studies provide a broad range of medical services that will disappear."Riley went on to note that there is "no public transportation between Lakesville and Palisades."

TheRegents areexpectedto makeadecisionafterthecloseofpublictestimony.

EXCERPTSOF TRANSCRIPTOF INTERVIEWWITHDR.NED SMITH

B. K. Moro:Dr. Smith, I've just turned on the tape recorder.As I explainedearlier, this will mean that others and I can easily review this interview.

Dr.NedSmith:Makessense.That'sfinewithme.

Q:Dr. Smith, you showed me the letter dated yesterday terminating you from your position as Chair of the Department of Medicine at the University of Columbia, a public university.You wanted to meet today to explore the possibility of seeking injunctive relief -- apreliminary injunction -- stopping that action from taking effect.

A:You know, I was and still am extremely angry about this letter. In 2002, I was appointed Chair of the Department of Medicine.I have spent the last 20 plus years of my career building up that department into one of the best in the country.I have always prided myself in taking principled positions and speaking my mind on controversial issues.Here's a recent article on the controversy.

Q: Thanks.Doctor, can you tell me more about concerns you have about the proposed relocation of the School of Medicine to Palisades?

A: Of course.First, the Universityis the primarypublic research facilityin basic science and medicine in Columbia. It has four campuses, one of which is the Health Sciences Center which has five schools, including the School of Medicine.The School of Medicine includes the Basic Science Departments and the largest department, the Department of Medicine. Department chairs are responsible for the organization of their department and for implementing policies initiated by the Chancellor and Dean of their respective units. Dr. John Blaze became Chancellor of the Health Sciences Center in 2011 and Dr. Peter Santos has served as Dean of the School of Medicine since 2015.

I posted on my website that in early 2020 the University began considering the possibility of moving the School of Medicine from Lakesville, Columbia, to a former army medical center in Palisades, Columbia, some 20 miles away. I also posted that there has been extensive debate within the University community about the possibility of the move.

I feel that separating the School of Medicine from the Basic Sciences Research facilities at Lakesville would unnecessarily isolate the Med School from its Basic Science colleagues.Second, from a fiscal standpoint, the citizens of Columbia would not be getting their money's worth.The bonds floated to pay for the construction will take 40 years to pay off without a certain benefit to the community.This is particularly true because the new school would be located some 20 miles from theurbancenter of Lakesville.That wouldmean thatmost peoplewho use themedical facilities would have to travel longer distances to areas not supported by public transportation.This would have a detrimental effect on the lower income members of our community.

Q:AndIassumeyoumadetheseviewsknown?

A:You bet.I wrote a pretty comprehensive report that I circulated widely among the faculty at the Medical School soon after the proposal was first floated in 2020.There were a number of faculty and university-wide forums held in 2020 and 2021.I attended them, and presented my position at each of those forums.In early 2022, Blaze and Santos asked me to meet with them.

Theyasked meto tone down mycriticism of the relocation proposal, stating that it was divisive.I told them that I thought this issue needed to be fully debated so that a decision in the Medical School's and greater community's best interests would be made.I also told them that if their position eventually prevailed, I would accede, but that I wouldn't go down without a fight.

Q:Howdid they respond?

A:They seemed to be pretty upset.They said that it was important that the administration present a united front, and that my actions indicated my unwillingness to be a team player.

Q:Dr.Smith,howwouldyourespondtothatstatement?

A: I question both the premise and the conclusion they drew about me.I certainly understand that it's important that once a policy is adopted or a decision is made that it is critical that members of the administration implement that policy or decision whether they agree with it or not.Then it's important to present a united front.But the Regents hadn't made a decision yet.We were debating the issue as a community.I have been on the losing side of many such battles over the years, and I defy anyone to point to an instance when Iwasn't a good team player.This remindsmeof a similar battleover the reorganization of the Health Sciences Center a number of years ago.I opposed the current division of the various schools and made my views known.When the decision went against me, I implemented the decision wholeheartedly.

Q:Howcloselydo you,BlazeandSantoswork?

A: The departments are pretty autonomous.Santos has bimonthly meetings with Department Chairs.Chancellor Blaze and I see each other very infrequently.So, we don't work very closely together at all.

Q:Did theydirect younottomakeanyfurtherstatementsaboutthe relocation?

A:No,theyknewbetterthanthat.Not thatIwouldhavelistened anyway.

Q:Canyou saymoreaboutwhat youmean?

A:I'm a stubborn cuss, I guess you could say.I felt very strongly still do that the relocation plan was misguided, and I felt that I owed it to the Med School, to all my colleagues, and to Lakesville, to do my best to convince the Regents that I was right.I wanted to make sure the right thing was done.

Q:DidanythinghappenafterthemeetingwithBlazeandSantos?

A:The next thing that happened was the Regents' meeting where the proposal was considered.That happened about two months ago.I presented my report and oral testimony, as well as a petition signed by some 45 out of 50 of my faculty colleagues at the Medical School opposing the relocation.The Regents tabled their decision for a couple of months.I then wrote a letter to the Lakesville Gazettethatran in the paper about 7 weeks ago, about a week after the Regents' meeting where I testified. The letter was later re-quoted in the article that I just gave you. The letter was the straw that broke the camel's back, I guess.

Q:Howso?

A: Earlier this week at the Regents' most recent meeting, lots of community members showed uptotestifyagainst theproposal.I'm prettysure thatmyletter was the impetus for all the community opposition.The meeting was supposed to last for 4 hours, and ended up going an extra 3 hours.

Q:DidtheRegentsvote?

A:Yes, they did.Even after all that, they decided to go ahead with the proposal to relocate the Med School to Palisades.I was very disappointed to say the least.

Q:I'm sureyouwere.Andthatwasn'tthelastofit,wasit?

A:No, thenext thingIknowI getthisletter datedthedayafter theRegents' vote.They canned me!I still can't believe it.I just hope there's something you can do about this.

Q:I certainly hope so.We'll start doing research.You've given me a copy of the newspaper articleand the termination letter.I want to get back to an earlier point you made.You said that you are pretty angry about the proposed termination.Would you say more about the effect of this on you?

A: It's quite a slap in the face.This feels like a blatant attempt to send a stern message to the rest of thefaculty: dissent at your peril; don't buck the administration if it's already made up its mind.It feels unfair too, since I told everyone all alongthat I'd abide by the Regents' decision whether my position prevailed or not.

Q: Dr. Smith, I glanced at the termination letter.What would you say in response to their allegations about disharmony among faculty and staff?

A: When you've been around as long as I have, you make enemies, I'm afraid.Yes, there were some who disagreed with me mostly because they wanted to be on the opposite side of the issue from me.I think I know which faculty members said they felt intimidated.I don't intimidate people.That'snotmystyle.You will find that Iam widely respected by my faculty colleagues and the staff.Those few are just out to get me.

Q:WhataboutthatstatementaboutyoureffectivenessasChair?

A: It's a bunch of hooey.You can ask the 45 faculty who signed my petition.All of them are in my department, and I'd be willing to bet that all of them would say that things continue to run well.

Q:Well, Dr. Smith, I know that the termination is set to become effective almost a monthfrom yesterday.I will get back to you by the end of the day.

ENDOF TRANSCRIPT

REGENTSOFTHEUNIVERSITYOFCOLUMBIA

OFFICEOFTHEPRESIDENTWESTERNPLAZALAKESVILLE,COLUMBIA

February27,2024

Dr.Ned Smith

Chair,DepartmentofMedicine School of Medicine

HealthSciencesCenter University of Columbia FG-705

Lakesville,Columbia Dear Dr. Smith:

After the public portion of last night's Regents' meeting was adjourned, we went into Executive session.At the joint recommendation of Chancellor Blaze and Dean Santos, we unanimously voted to terminate your Chairpersonship of the Department of Medicine, effective one month from today.As a tenured member of the faculty, you will retain all rights and perquisites of your position as a Professor of Medicine, and we sincerely hope that you will remain with the Department.

We greatly regret that the situation has deteriorated to such a degree that this decision is necessary, but it is.Given your more than 20 years of service as Chair of the Department, we believe that you are entitled to understand some of the reasons for this unfortunate decision.

More than three years ago the Regents embarked on the planning process culminating in yesterday's decision to relocate the Medical School to Palisades.Since day one, you have made it your singular mission to sabotage this effort.You are certainly entitled to your opinion.Let me assure you that the Regents' decision has nothing to do with that

opinion or your wide and vehement expression of that opinion.Rather, it has become apparent that your prominent role as an outspoken opponent of the relocation has caused widespread disharmony among the faculty and administration of the University. Several faculty members have expressed to Chancellor Blaze and Dean Santos that theyfeel intimidated by your insistence that the relocation not occur.This indicates that your performance as department chair has been impaired, as these faculty members clearly did not feel comfortable going to you directly to express their concerns.Most importantly, Chancellor Blaze and Dean Santos feel that you cannot be trusted to work as part of the team to implement the relocation plan, now that it has been approved.

Ned,youhavebeenaninvaluablememberof theUniversitycommunity.Thisactionis not a reflection of any animus toward you.Rather, as your employer, we need to operate efficiently.Your recent activities have adversely affected your effectiveness as Chair, undermined the University's confidence in your ability to be a team player, and caused disharmony among employees.This we cannot tolerate.

Allthebest,

RegentsoftheUniversityofColumbia

Leila D. Reyes,President

Case Law library

Ellisv.Hamer

ColumbiaSupremeCourt(2023)

This is an action brought pursuant to Columbia Civil Rights Code sec. 1983 by a City of Texeira police officer against Stan Hamer, the City of Texeira police chief, alleging a violation of his First Amendment rights under the Columbia Constitution. In his complaint, plaintiff Kevin Ellis asserts he has been illegally disciplined by Chief Hamer for exercising his rights to free speech. Plaintiff asserts he has been disciplined by a fifteen day suspension. He sought a preliminary injunction.Plaintiff requested rescission of his suspension.He further sought injunctive relief restraining and enjoining the defendant from further discipline or threatof discipline for the exercise of his rights to free speech.The request for injunctive relief was denied, and this appeal followed.

The verified complaint sets forth the following facts:On February 16, 2022, Gladys Oren wrote a column in the Texeira Journaladdressing several issues "concerning her perception of racism in the state court criminal system." The complaint notes: "Ms. Oren's comments included her questioning the justice involved in the sentencing of a young African-American male on drug charges since no other African-Americans were involved in the young man's sentencing, including the jury, judge and attorneys involved." The column concluded with Ms. Oren's e-mail address, which was provided for the public to contact her with comments.

On the next day, plaintiff sent an e-mail from his personal account at his home to severalofficersoftheTexeiraPoliceDepartment(TPD)andtheeditorialdepartments of theTexeiraJournalandtheTexeiraMetroNews.OnFebruary19,2022,plaintiff sentane-mailfromhispersonalaccountathisresidencetoMs.Orenin response to her column. The complaint states: "Ellis commented that Ms. Oren's article was racist in tone, and stated his belief that the young man referred to in her article was not sentenced because of his race." Ms. Oren responded by e-mail to Ellis' e-mail. Ellis sent this e-mail to TPD officer Daniel Costa. On February22, 2022 Ellis sent an e-mailfrom his TPD account at his home to the e-mail accounts of Costa and Ms. Oren. The complaint states: "The e-mail contained comments in response to Ms. Oren's article regarding her allegations of racism in the state court system." On February 24, 2022, Ellis' comments that had been sent to the newspapers' editorial boards were published in both papers. OnMarch 13, 2022, Chief Hamer instituted discipline in the form of a fifteen day suspension without pay for Ellis.

We review the decision to deny a motion for a preliminary injunction for abuse of discretion.In order to obtain a preliminary injunction, among other elements, a party must demonstrate a substantial likelihood of prevailing on the merits.

SubstantialLikelihoodof SuccessontheMerits

Plaintiff iscorrectthatpublicemployeesretaintheirFirstAmendmentrightsunderthe Columbia Constitution.However, in the public employment context, a public employer may impose some restraints on job-related speech of public employees that would be plainly unconstitutional if applied to the public at large.

To determine whethera public employer's actions impermissiblyinfringe on free speech rights, this court has followed the Boyle4-parttest enunciated by this Court.

We address the first two parts of that test here:(1)Doesthespeechinquestioninvolveamatterof publicconcern?If so,(2)we must weigh the employee's interest in the expression against the government employer's interest in regulating the speech of its employees so that it can carry on an efficient and effective workplace.

In evaluating whether an employee's speech addresses a matter of public concern in a retaliatory discipline or discharge case, we have articulated that when an employee speaks as an employee upon matters only of personal interest the speech is not protected.To judge whether particular speech relates merely to internal workplace issues, courts must conduct a case by case inquiry, which includes scrutinizing whether the speaker's purpose was to bring an issue to the public'sattentionortoairapersonalgrievance.Anemployee'sspeechmustnotmerely relate generally to a subject matter that is of public interest, but must sufficiently inform the issueasto be helpfultothe publicinevaluatingthe conductof government.Thatis, we look beyond the general topic of the speech to evaluate more specifically what was said on the topic.

Because Plaintiff's letters concerned the integrity of the police department's operations, though arguably touching upon internal workplace issues, the speech addressedmatters of public concern.Therefore, Plaintiff satisfied the first prong of the Boyle analysis.

Once a court determines that the Plaintiff's speech involves a matter of public concern, the Boylebalancing test requires a court to weigh the interest of a public employee in commenting on such matters against the interest of the employer in promoting the efficiency of its services.We balance these interests by weighing five factors. We address only the first factor here: whether the speech would or did create problems in maintaining discipline or harmony among coworkers.

The matters noted by the defendant at the hearing, i.e., the disruption of the prosecution of criminalcasesand the disruption of personnelmatters, were deemed bythe trialcourtto tip the balance infavorof the employer.Thus, Plaintiff isunable to show a likelihood of success on the merits.

In the absence of a showing of substantial likelihood of success on the merits, the court below did not err in denying Plaintiff's motion for preliminary injunction.

Affirmed.

Halperinv.Yost

ColumbiaSupremeCourt(2018)

Defendants, two state university officials, appeal from the superior court's finding of a violation of Plaintiff's First Amendment rights under the Columbia Constitution and awarding him damages.We affirm.

Background

Plaintiff Mike Halperin is a tenured faculty member at Columbia State University("CSU"). He was appointed as an assistant professor in the Department of Accountingin 2005. His field is taxation.Beginning in 2011, Dr. Halperin sought to revoke the tenure of a colleague (Dr. Wayne Mott) on grounds of plagiarism and copyright violations, emotional abuse of students, abuse and harassment of staff, misuse of state funds, receipt of kickbacks from a publisher in return for adopting textbooks, and othercharges. Administrators at CSU allegedly threatened Dr. Halperin with adverse employment-related actions unless his charges against Dr. Mott were dropped. These threatened actions included termination of the Masters of Accounting (M.S.) degree program in which Dr. Halperin taught, assignment to teach courses outside his area of expertise, transfer to another department, and eventual termination due to overstaffing if the graduate program were eliminated.

Ultimately, a special university committee recommended that Dr. Mott's tenure be retained, but it did so without considering evidence beyond the initial charges and without interviewing Dr. Halperin.In July 2012, Dr. Carter became the Dean of the College of Business, and, after learning of the more than six years of divisiveness and dysfunction within the Department of Accounting, he proposed transferring Dr. Halperin out of the Department. In the summer of 2013, Dr. Halperin was transferred involuntarily from the Department of Accounting into the Department of Management, in which he claims he is not qualified to teach any courses.

In response to the transfer, Dr. Halperin filed a grievance.Eventually, the Provost denied the grievance.

Dr. Halperin filed suit alleging that his transfer to the Department of Management was in retaliation for his public allegations against Dr. Mott.He was awarded damages and injunctive relief following a jury trial.This appeal followed.

Discussion

Dr. Halperin's Columbia Constitution First Amendment claim rested on the assertion that state actors may not condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression and cannot retaliate against an employee for exercising his constitutionally protected right of free speech.In considering this type of claim, it is essential to identify the speech which resulted in the alleged retaliation.Here, Dr. Halperin's speech consisted of his statements in support of administrative revocation of tenure of Dr. Mott and his statements refusing to withdraw his support for an investigation despite the university's opposition.

The four-part test for evaluating a Columbia constitutional claim for First Amendment retaliationisstatedinBoyle.The first two parts of thetestareasfollows:(1) whetherthespeechisprotected, i.e.,onamatterofpublicconcern; and(2)whethertheemployee'sinterestincommenting onmattersofpublicconcernoutweighsthegovernmentemployer'sinterestinpromoting efficientgovernmentservices.

The trial court properly found that speech which discloses any evidence of corruption, impropriety, or other malfeasance on the part of state officials clearly concerns matters of public importance.Courts also consider the motive of the speaker: was the speech calculated to redress personal grievances or did it have a broader public purpose?Here, Dr. Halperin attempted to bring his concerns about Dr. Mott to the CSU Administration, and stated in response to threats that if the charges were withdrawn, he would personally refile them.He wrote memos to the Provost about the lack of investigation that generated the recommendation that Dr. Mott's tenure not be revoked and requested an investigation of the alleged threats made against him.The speech in thiscasefairlyrelatesto chargesata publicuniversitythat plainlywould be of interest to the public, e.g., plagiarism and copyright violations, emotional abuse of students, abuse and harassment of staff, misuse of state funds, receipt of kickbacks from a publisher in return for adopting textbooks, and a claimed inadequateinvestigation of the allegations and alleged retaliation against the person who made the allegations.

Dean Carter contended that Dr. Halperin merely sought to establish internal order in the Department of Accounting, not bring to light governmental wrongdoing.Of course, speechrelatingtoaninternaldepartmentdisputewillnormallybeclassifiedasa personal grievance outside of public concern.Dr. Halperin testified that while he knew that filing tenure revocation charges against Dr. Mott would be divisive in the short run, in the long run it would lead to greater harmonyin the Department because most of the problems were attributable to that issue. The fact that Dr. Halperin might receive an incidental benefit of what he perceived as improved working conditions does not transform his speech into purely personal grievances. Moreover, speech which touches on matters of public concern does not lose protection merely because some personal concerns are included.The trial court properly concluded that Dr. Halperin's speech related to matters of public concern.

As to the second step, the trial court balanced Dr. Halperin's right to speak out about this matter with the interests of his employer.In engaging in this balancing, courts consider five factors. The lower court's finding on the first factor was a basis for this appeal. That factor is: whether the speech would or did create problems inmaintaining discipline or harmony among coworkers. The lower court found that it did not.

The trial court found that Dr. Halperin's speech contributed to disharmony among coworkers.Its inquiry properly did not stop there.In a democratic society, healthy levelsofdissent and debate are essential to the vitality ofinstitutions.In particular, an academic institution strives to foster critical thinking skills in its students and does so in part by modeling the give and take of debate within the institution itself. Thus, the court must consider the ability of the employer to do its essential work without undue disruption in its operations despite the exercise of free speech rights of its employees.Defendants were unable to convince the court that the disharmony caused disruption in teaching, research or administration at the school, nor were Defendants able to demonstrate long-term morale or discipline problems caused by the speech.

Affirmed.